A Cloudy Transgender Athletes SCOTUS Argument With a Possible Silver Lining

Even after roughly three and a half hours of oral argument in the two SCOTUS cases involving state bans on transgender females' participation in girls' and women's sports yesterday, much remains unclear. I counted at most four votes--the three Democratic appointees and possibly Justice Gorsuch--for the plaintiffs/respondents in the two cases. Thus, I agree with the headline of the NY Times story on the case: Justices Seem Inclined to Allow States to Bar Transgender Athletes. "Seem" and "inclined" are useful qualifiers, if not so much for the bottom line as to signify that there are a lot of moving pieces. Here I'll focus chiefly on the as-applied/facial distinction and then say a few words about two other subjects.

Is an As-Applied Equal Protection Challenge Permissible?

The lawyers for Idaho, West Virginia, and the U.S. as amicus all urged the Court to reject the challenges on what they portrayed as a clean and easy ground. I'll summarize their argument and then explain why I think it should fail.

Argument summary: Everybody agrees that the Equal Protection Clause permits the states to exclude cisgender boys and cisgender men from girls' and women's sports. The vast majority (something like 99 percent) of people who are excluded from girls' and women's sports by the challenged laws are cisgender. Sex-based classifications are subject to intermediate rather than strict scrutiny, requiring that sex-based classifications "substantially further" important government interests, not that they must be a near-perfect fit, as in strict scrutiny. Thus, laws like those of Idaho and West Virginia are constitutionally valid in nearly all instances, far exceeding the required threshold of substantial advancement. If the Court were to allow a one-percent subset of the people to whom the laws apply to succeed in an equal protection challenge, that would convert intermediate scrutiny into strict scrutiny. Further, even under strict scrutiny, as-applied challenges aren't allowed because it's almost always possible to identify a sufficiently small sub-class of the people to whom a law applies and show that it's not a good fit for them. But under that approach, any law that didn't fit every application perfectly (which is nearly impossible) would be invalid as applied.

As various Justices and the plaintiffs' lawyers explained, the foregoing argument is contrary to precedent. Justice Sotomayor was most forceful in explaining that this precise objection to an as-applied equal protection challenge was made by Justice Stevens in dissent in Caban v. Mohammed--but he was dissenting. The Court in that case and others has allowed as-applied equal protection challenges. Kathleen Hartnett for the respondents in the Idaho case contended that this makes sense where there is something identifiably coherent about the sub-group, as there was in Caban itself and as there is here.

I think that's probably right, but only in cases involving heightened--i.e., strict or intermediate--scrutiny. In rational basis cases, the Court has stated quite clearly that a poor fit even with respect to such a sub-class, is irrelevant. For example in NYC Transit Authority v. Beezer,  the Court, applying rational basis scrutiny, upheld a rule barring employment of all narcotic drug users, despite evidence that those who had been successfully maintained on methadone for a year or longer posed no greater safety risks than the general population. That was an identifiable and coherent sub-group but under rational basis scrutiny, that doesn't matter.

Why not? Presumably because administrative convenience counts as a rational basis, whereas it doesn't count as a compelling interest (for strict scrutiny) or an important one (for intermediate scrutiny). The defendant in Beezer could simply decide it didn't want to bother distinguishing between the risky and the non-risky narcotics users, but not wanting to bother distinguishing between transgender females and cisgender males doesn't cut it for intermediate scrutiny. Idaho and West Virginia might have some better reason for not drawing that distinction, but it would have to be based in actual reality and satisfy intermediate scrutiny.

Meanwhile, even if the states and the U.S. are right that there's no such thing as an as-applied equal protection challenge, that only gets them victory on the sex discrimination claim. The plaintiffs also argue that the laws discriminate on the basis of transgender status. As to that claim, the plaintiffs aren't a small sub-group.

The states and the U.S. try to get around the transgender status discrimination claim by invoking the logic of United States v. Skrmetti. That logic, however, is dubious, as even Justice Alito seemed to recognize there. The challenge here is to the combination of a sex-based line with a state definition of sex as sex assigned at birth. Other than a law that says specifically "transgender persons shall not be entitled to this or that opportunity because they are transgender," it's difficult to come up with a classification that more clearly tracks transgender status than one that defines sex as sex assigned at birth.

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Even assuming that the Court faithfully applies its precedents allowing as-applied equal protection challenges or avoids the dubious logic of Skrmetti, there is no guarantee that the plaintiffs/respondents will win. In fact, as I read the Court, there are very likely at least five votes to uphold laws like those of Idaho and West Virginia under intermediate scrutiny. And if there were a proper factual record to support that position, that might even be the right answer.

If the respondents lose, as I expect they probably will, it makes a difference how they lose. On that front, I saw two hopeful signs during the oral argument.

First, by contrast with his performance in Skrmetti, Justice Gorsuch was active. He pretty clearly has not reconsidered his view in Bostock v. Clayton County. He was the one conservative Justice who pressed hard on the arguments by the states and the U.S. At the very least, he will try to ensure that nothing in the majority opinion leads to watering down protection against transgender status discrimination outside the context of competitive sports.

Second, there seemed to be little appetite among the conservative Justices for the position the Trump administration has taken that Title IX actually forbids covered institutions from permitting transgender female athletes to participate in girls' and women's sports. Indeed, a point Justice Kavanaugh made repeatedly would seem to push back pretty hard against that position. Emphasizing principles of judicial restraint and echoing his view in Dobbs that "the Constitution is neutral" with respect to abortion, he strongly indicated that whether to ban or permit transgender female athletes to participate in girls and women's sports should be left to the states.

If the plaintiffs/respondents are to lose, then ideally the Court would say (presumably in dicta) that while Idaho and West Virginia can legally ban trans female athletes from girls' and women's sports, California and New York aren't required to do so, either by Title IX or (even more far-fetchedly) the Constitution. At the very least, the Court should not say anything that implies the opposite.